The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact By Notice dated October 16, 2014, the final hearing was scheduled for December 15, 2014, at 9:30 a.m. Although the undersigned convened the final hearing on the date and time indicated in the Notice, neither Petitioner nor counsel for Respondent was present. As of 10:00 a.m., Petitioner had not appeared or contacted DOAH. At that point, the undersigned announced that, in light of Petitioner's nonappearance, the hearing would be adjourned and that a recommended order of dismissal would issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2014. COPIES FURNISHED: Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) James Leroy Padgett, General Counsel Putnam County School Board 200 South 7th Street Palatka, Florida 32177 (eServed) David C. Wade 126 Raintree Woods Palatka, Florida 32177
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
The Issue The issue in this case is whether Limited Edition Interiors, Inc. (Respondent), committed an act of unlawful employment discrimination and an act of retaliation against an employee, Arlene Matvey (Petitioner), in violation of Pinellas County Code sections 70-53(a) and 70-54(1).
Findings Of Fact At all times material to this case, the Respondent was an interior furnishings retailer located in Largo, Florida, and owned by William S. Miller (Mr. Miller) and Judith L. Miller (Mrs. Miller), a married couple. Mrs. Miller was the president of the company. Mr. Miller was the secretary/treasurer of the company. Both Mr. and Mrs. Miller were generally present at the business. The Respondent was an "employer" pursuant to the definition of the term set forth within the applicable Pinellas County Code provision. On October 31, 2005, the Respondent hired the Petitioner to work as the office manager and bookkeeper in a full-time, salaried position. The Petitioner's duties included tracking various accounts, preparing sales invoices, preparing the payroll, preparing certain tax records, and general office filing. The Petitioner, a single mother, had been unemployed for an extended period prior to being hired by the Respondent. Both Mr. and Mrs. Miller knew that the Petitioner needed the financial support provided by her job. Mr. Miller was the Petitioner's supervisor. Their work areas were in relatively close proximity, with Mr. Miller occupying an office space with a door and the Petitioner occupying a workstation immediately outside Mr. Miller's office. There was a second workstation also located outside Mr. Miller's office, and, on occasion, a third employee was present in the area. A few months after the Petitioner began employment at the Respondent, Mr. Miller began to make remarks about the Petitioner's physical appearance, particularly her "derriere." The remarks were frequent and were heard by other employees. The Petitioner was offended by the remarks and routinely told Mr. Miller to stop. On more than one occasion, Mr. Miller asked the Petitioner to sit on his lap. The Petitioner objected to Mr. Miller's requests and told him so. On at least one occasion, the exchange between Mr. Miller and the Petitioner was overheard by another employee. At various times, Mr. Miller called male employees and the Petitioner into his office to view sexually-suggestive photographs on his computer, some of which were described as pornographic. The Petitioner and other employees objected to the display of photographs and told him that they objected to his showing them the photos. At other times, Mr. Miller called the Petitioner into his office and showed her pornographic images on his computer screen. She felt disturbed by his behavior and told him of her objection. At times during the Petitioner's employment by the Respondent, Mr. Miller made purposeful and inappropriate physical contact with the Petitioner's body. Such contact included attempts to grab the Petitioner by her waist and to rub his clothed genital area against the Petitioner's clothed buttocks. The Petitioner consistently objected to Mr. Miller's behavior and told him of her objections. Other employees observed Mr. Miller's conduct and the Petitioner's objections to his behavior. On one occasion, Mr. Miller called the Petitioner into his office and told her a joke that included his displaying the outline of his penis through his pants, at which time the Petitioner voiced her objection to Mr. Miller. In September 2007, Mr. Miller appeared at the Petitioner's home, and, while there, he exposed his penis to the Petitioner and attempted to entice the Petitioner into sexual activity. He had not been invited to come to her home, and he left the premises when she directed him to do so. At various times during her employment, Mr. Miller asked the Petitioner to expose her breasts to him, and she objected and declined to do so. She eventually complied with the request on one occasion, because she feared losing her job if she refused. Subsequently, Mr. Miller told a male employee that the Petitioner had acceded to his request to see her breasts. The male employee relayed the conversation to the Petitioner, who felt humiliated by the incident. There was no evidence presented at the hearing to suggest that the Petitioner invited or encouraged Mr. Miller's inappropriate behavior. To the contrary, the evidence establishes that the Petitioner routinely told Mr. Miller of her objections to his conduct at the time it occurred. Because the Petitioner had been unemployed prior to being hired by the Respondent and was afraid of losing her job, she did not complain to Mrs. Miller about Mr. Miller's conduct. At the beginning of 2008, the Petitioner advised Mr. Miller that she felt he was "sexually harassing" her. Mr. Miller thereafter began to engage in a pattern of verbal harassment directed towards the Petitioner's job performance. He began to assign tasks to the Petitioner unrelated to her prior bookkeeping or office manager duties. She was assigned to monitor the store inventory, prepare sales tags and attach them to floor samples, dust the store, and clean the kitchen. Mr. Miller routinely criticized the Petitioner's work skills, argued with her about the performance of her duties, and called her "stupid." Prior to January 2008, neither Mr. nor Mrs. Miller had expressed any significant dissatisfaction with the quality of the Petitioner's work as office manager or bookkeeper. There was no credible evidence presented at the hearing that the Petitioner was unable or unwilling to perform the office manager and bookkeeper tasks for which she was hired. Indicative of Mr. Miller's general attitude towards the Petitioner, he used a parrot that was kept at the store to intimidate the Petitioner, who was afraid (perhaps irrationally) of the bird. Mr. Miller clearly knew that the Petitioner was fearful of the bird, yet he would stand behind the Petitioner while she was working and hold the bird near the Petitioner's head, terrifying her. In early 2009, Mr. Miller again called the Petitioner into his office and showed her pornographic images on his computer screen. She again advised him of her objection to his conduct. Prior to 2009, the Petitioner had not talked with Mrs. Miller about her husband's conduct, because the Petitioner remained concerned about losing the job. However, in February 2009, while the two women were both in the store's lunchroom area, the Petitioner advised Mrs. Miller of Mr. Miller's conduct and asked Mrs. Miller to intervene. Mr. Miller had been out of the store for much of February 2009. He returned to work on February 23, 2009, and the Petitioner testified that he left her alone for a few days after his return. However, on March 2, 2009, the Respondent terminated the Petitioner's employment as a salaried, full-time employee, transferred her into an hourly wage position, and reduced her employment hours. She was partially relieved of her bookkeeping responsibilities and was assigned additional store tasks such as moving old boxes and cataloging their contents. The Respondent asserted that the March 2, 2009, action was the result of deteriorating business conditions. The Respondent asserted that the store revenues had declined and that they were required to reduce payroll costs by reducing personnel. The Respondent failed to provide any credible evidence supporting the assertion that deteriorating sales and income were the rationale behind the alteration of the Petitioner's work responsibilities. After March 2, 2009, Mr. Miller routinely continued to criticize the Petitioner's work performance. On July 23, 2009, Mr. Miller and the Petitioner became engaged in a heated discussion in the office area, during which he referred to her as a "fucking c-nt." Although Mr. Miller testified that he did not intend for the Petitioner to hear his insult, he said it loudly enough to be overheard by another employee who was also in the office area. Mr. Miller had previously used the same phrase to refer to other women, including Mrs. Miller. The Petitioner immediately reacted, screaming at Mr. Miller that he could not use the phrase and stating that she would be filing "a complaint" against him. The Petitioner left the office area and went into the store area, loudly protesting Mr. Miller's insult and intending to advise Mrs. Miller of the incident. Because there were customers in the store at the time, Mrs. Miller focused more on calming the Petitioner and not disrupting the store. After speaking briefly with Mrs. Miller, the Petitioner returned to the office area to collect her possessions. Mr. Miller approached the Petitioner and placed his hands in the area of her neck, which caused the Petitioner to feel physically threatened. The Petitioner took her possessions and left the store. The Petitioner next returned to work on July 27, 2009, at which time she was told that she was no longer the office manager and bookkeeper. At the hearing, Mr. Miller testified that the Petitioner was removed from the office because the situation had become volatile. Mrs. Miller testified that, because the Petitioner was argumentative, a decision had been made to remove her from the office. On July 27, 2009, when the Petitioner asked Mrs. Miller why she was no longer the office manager, Mrs. Miller said the Petitioner's job had been changed "because of Bill," meaning Mr. Miller. As of July 27, 2009, the Petitioner had no further office management responsibilities and retained only janitorial and store tasks. The Petitioner was also directed to call the store before coming in to see if she was needed on that day. On some days, the Petitioner was told there was no work for her. On August 14, 2009, the Respondent terminated the Petitioner's employment. There was no credible evidence presented at the hearing that the termination of the Petitioner's employment was related to dissatisfaction with her performance as the Respondent's office manager and bookkeeper, or to the performance of the other tasks that were subsequently assigned. The Respondent asserted that economic conditions caused them to terminate some employees, including the Petitioner, but there was no credible evidence presented to support the assertion. The evidence presented during the hearing established that employees who were terminated were fired for non-performance of their job duties. There was no credible evidence presented at the hearing that the Petitioner's termination or the reduction in her work hours was related to the Respondent's economic condition. At the hearing, employees (both current and former) described Mr. Miller's treatment of women as degrading and humiliating. Employees who worked for the Respondent concurrently with the Petitioner were aware that she was being humiliated by Mr. Miller's behavior. In addition to the Petitioner, Mr. Miller previously assigned janitorial duties to an employee whom he disfavored when he wanted the employee to quit. After the Petitioner's employment was terminated by the Respondent, the Petitioner attempted to obtain another job. During the period of unemployment, the Petitioner received $300.00 per week in unemployment compensation benefits. As of November 9, 2006, the Petitioner earned a bi- weekly salary of $1,600.00 from the Respondent. As of February 1, 2006, the Respondent provided health insurance coverage for the Petitioner as a benefit of her employment and continued such coverage after her termination and through December 31, 2009. As of April 29, 2010, the Petitioner became employed by Gentry Printing Company as a full-time bookkeeper earning $15.00 per hour and working a 40-hour week. On July 17, 2010, the Petitioner received a raise from Gentry Printing Company to $16.00 per hour for the 40-hour week. Gentry Printing Company withholds $22.50 from the Petitioner's weekly income as her contribution to the medical insurance program. At the hearing, the Petitioner presented testimony related to damages. The evidence established that the Petitioner was entitled to an award of $32,745.00 in back pay. The Respondent presented no corresponding evidence or testimony related to damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the Respondent violated Pinellas County Code sections 70-53 and 70-54 and ordering the Respondent to pay the sum of $32,745.00 plus interest at the prevailing statutory rate to the Petitioner. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2011. COPIES FURNISHED: William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert G. Walker, Jr., Esquire Robert G. Walker, P.A. 1421 Court Street, Suite F Clearwater, Florida 33756 Sherri K. Adelkoff, Esquire 1159 South Negley Avenue Pittsburgh, Pennsylvania 15217 Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756
The Issue The issue is whether Petitioner's Charge of Discrimination states a cognizable claim under the Florida Civil Rights Act of 1992, as amended in Sections 760.01-760.11 and 509.092, Florida Statutes.
Findings Of Fact Petitioner filed his original Charge of Discrimination with FCHR on March 6, 2000. He filed his amended charge on March 31, 2000, after talking to FCHR's staff on the telephone. Petitioner alleges that he experienced harassment and retaliation in the workplace because he "supported a co-worker Gary Farrell in reporting to the company about harassment he was receiving from Union Business Manager, Joe Nobles and past Job Steward, Richard Mason for quitting Local Union 1055." Petitioner's charge also alleges the following: Joe Nobles and Richard Mason retaliated against me by influencing most of the union members in the department to ostracize us by not talking to us or cooperating with us. Some co-workers have come to me and said they were told not to associate or cooperate with me, because I supported co-worker Gary Farrell in reporting harassment to Corporate Office. Petitioner's complaint did not allege discrimination or retaliation based on his race, color, religion, national origin, sex, age, handicap and/or marital status. Petitioner was given an opportunity to amend his complaint before the FCHR and failed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000. COPIES FURNISHED: Ralph A. Peterson, Esquire Beggs & Lane, LLP Post Office Box 12950 Pensacola, Florida 32576-2950 R. John Westberry, Esquire Holt & Westberry, P.A. 1108-A North 12th Avenue Pensacola, Florida 32501 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues posed for decision herein are whether or not the Respondent discriminatorily discharged the Petitioner, at least in part, based on race or other unlawful considerations, and whether or not the Respondent's employment policies, as practiced against the Petitioner herein, have an adverse impact upon blacks and/or other minorities. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the proposed memoranda and the entire record compiled herein, the following relevant facts are found:
Findings Of Fact Petitioner was employed by Respondent from March 12, 1979 to May 29, 1979. Petitioner was notified of his termination by Respondent's agent, Captain James McRaven, on May 29, 1979. Petitioner's efforts to be employed by Respondent commenced with his completing an application during 1978. In this regard, Industrial Relations' Manager, Earle Patrick, sought out Petitioner for employment with Wackenhut as part of his duties of recruiting qualified minority employees for positions. Patrick's effort included personal contacts, advertising, and other recruiting methods, including the use of service organizations in Brevard and the immediate surrounding counties. Industrial Relations' Manager Patrick advised Petitioner that a background investigation is conducted on each employee hired by Wackenhut. Petitioner's knowledge of Respondent's background investigations is further verified by a review of the application, completed by Petitioner, which provides in pertinent part: I . . . agree that if, in the judgment of the company . . . the results of such investigation are not satisfactory, any offer of employment made by the company may be withdrawn, or my employment with the company may be terminated immediately without any obligation or liability to me . . . Respondent has a policy of not extending offers of employment to applicants with convictions involving penalties in excess of a $25.00 fine, except minor traffic violations. Petitioner indicated on the first page of his application for employment that he had never been convicted of a violation of any law. Additionally, this fact was again admitted by the Petitioner during the subject hearing herein. Further, on two separate occasions prior to the Petitioner's commencement of employment with Respondent, Industrial Relations' Manager Patrick inquired of Petitioner whether or not his back ground investigation would reveal anything, aside from convictions, that he (Patrick) should be made aware of. On both occasions Petitioner replied "I am clean." Background investigations of the Petitioner indicated that Petitioner had been placed on one(1)year probation on April 10, 1978, for unemployment compensation fraud. That background investigation revealed further that other counts of unemployment compensation fraud had been withdrawn, and a further charge of issuing worthless checks in Kentucky had been dismissed. Petitioner pled guilty to the first count of unemployment compensation fraud and was placed on supervised probation for one (1) year. The court withheld adjudication of guilt. While a probationer, Petitioner was not allowed to carry a gun. Further, the Petitioner did not apply for any modification of the terms of his probation which would allow him to carry a firearm. Respondent maintains a rigid requirement for employee conduct and integrity for its security guard employees. (Respondent's Exhibit 15, Section 4.6.2.3 and Respondent's Exhibits 6 and 16.) The decision to discharge Petitioner was based on the results of the Respondent's background investigation of Petitioner and following consultation with its labor counsel, its Industrial Relations Manager, and the Chief of Security. Although the Petitioner contends that the Respondent was aware of his criminal background prior to employment, the documentary and other evidence introduced herein fails to support his claim in that regard. Further, the evidence reveals that the Petitioner does not employ, or even consider for employment, applicants who have pled guilty to a felony charge. This policy consideration is based on the Respondent's concern for high standards of integrity among its security guards due to the sensitive nature and other security considerations involved in its contract with NASA. In addition to the unlawful discharge allegation, Petitioner also alleged that he was unlawfully discriminated against in his employment with Respondent based on his failure to be selected for the SWAT Team; the fact that he as discriminatorily assigned to a remote and difficult security job assignment; the failure of Respondent to award him overtime work assignments, and finally, a claim that he was "grilled" by Captain McRaven. As to his non-selection to be a member of the SWAT Team, the Respondent bases its selection to the SWAT Team on employees who demonstrate a high proficiency in weapons, prior SWAT Team experience, and other factors, including length of employment. As to Petitioner's claim that he was discriminatorily assigned to a remote and difficult security job assignment, evidence reveals that Respondent attempts to assign employees to all of the possible job locations in an effort to acquaint them as much as possible so that they can be assigned to any and all post assignments as needed. Respondent selects employees for overtime assignments based on job seniority as set forth in its contract with the employee's job representative. Finally, no evidence was introduced herein to substantiate Petitioner's claim that he was "grilled" by Captain McRaven as charged. Petitioner acknowledged that there was a problem with his carrying a firearm while he was a probationer; however, he failed to mention his concern to any of Respondent's agents. Industrial Relations' Manager Patrick related that had the results of Petitioner's background investigation only revealed the disorderly conduct charge in Kentucky, Petitioner would still have been in Respondent's employ. The decision to terminate Petitioner was promoted by his guilty plea to a felony charge. Industrial Relations' Manager Patrick made a conscious effort to increase the number of minority employees with the Respondent. As example, during the month of April, 1978, Respondent's minority employees amounted to less than 1 percent of its total complement of employees, and during the course of the hearing, the complement of minority employees approximates 12 percent of the Respondent's total work force. Further, the number of minority employees shows a steady increase since the Respondent was awarded the subject contract with NASA in 1978. Richard G. Fritz, an associate professor who has earned a doctorate degree in economics, was received as an expert in statistics in this proceeding. 2/ Following a review of the "cause determination" introduced herein by the Intervenor, Dr. Fritz rendered his expert opinion that that determination was informational but not relevant herein, inasmuch as the reference groups were too small to be statistically accurate. Dr. Fritz reviewed several samples to determine a 50 percent accuracy rate and statistically determined that a sample size would need to number at least 102.18 in order to be valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Florida Commission on Human Relations enter an Order dismissing the PETITION FOR RELIEF filed herein. RECOMMENDED this 10th day of June, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1983.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Brent Cutlip is a principal of Two Men and a Truck.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Kenneth K. Scott be dismissed. DONE AND ENTERED this 14th day of November, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth K. Scott 8342 Gardenia Circle, No. 4 Pensacola, Florida 32534 Brent Cutlip Two Men and a Truck 7280 Plantation Road, No. 1 Pensacola, Florida 32504 Brent Cutlip Two Men and a Truck 379 West Michigan Street, Suite 200 Orlando, Florida 32806 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue Whether Petitioner was the subject of an unlawful employment practice by Respondent based on disability.
Findings Of Fact On February 7, 2011, an Order Granting Continuance and Rescheduling Hearing was entered setting the day, time, and location of the final hearing in this case. The Order was mailed to the last known, valid address of the Petitioner. The Order was not returned. On February 16, 2011, Petitioner filed a letter in this case indicating she was aware of the date, time, and location of the rescheduled final hearing. This cause came on for hearing as noticed. After waiting more than 15 minutes, Petitioner failed to appear to prosecute her claim. There has been no communication from the Petitioner indicating that she would not be attending the final hearing. Petitioner has the burden to establish by a preponderance of the evidence a violation of chapter 760. In this case, Petitioner failed to appear at the hearing after proper notice of the hearing was issued. Because Petitioner failed to appear, no evidence that Respondent violated chapter 760 was presented. Absent such evidence, Petitioner has not carried her burden of proof in this matter and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Harold R. Mardenborough, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Joyce Herring 501 South Main Street Havana, Florida 32333 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
